[env-trinity] Judge lifts order blocking increased Trinity River releases

Dan Bacher danielbacher at fishsniffer.com
Thu Aug 22 23:09:40 PDT 2013


Judge lifts order blocking increased Trinity River releases

by Dan Bacher

In a significant victory for salmon, a federal judge in Fresno today  
issued a decision lifting a temporary restraining order blocking  
increased releases of Trinity Reservoir water into the Trinity River  
to prevent a fish kill on the lower Klamath River.

The decision by U.S. District Judge Lawrence O'Neill came after a two  
-day court hearing and days of protests from a large group of Hoopa  
Valley Tribal members. Over 60 Tribal members protested in Fresno,  
California at the Westlands Water District board meeting on Tuesday  
and outside the Fresno courtroom and in Sacramento, California  
outside a fisheries hearing at the California State Capital building  
on Wednesday.

Judge O'Neill concluded “...on balance, considering the significantly  
lower volume of water now projected to be involved and the potential  
and enormous risk to the fishery of doing nothing, the Court finds it  
in the public interest to permit the augmentation to proceed.” (Page  

The Court also noted, “...the flow augmentation releases are designed  
to prevent a potentially serious fish die off from impacting salmon  
populations entering the Klamath River estuary. There is no dispute  
and the record clearly reflects that the 2002 fish kill had severe  
impacts on commercial fishing interests, tribal fishing rights, and  
the ecology, and that another fish kill would likely have similar  
impacts.” (Page 16.)

"The Trinity River is our vessel of life and the salmon are our  
lifeblood," stated Hoopa Valley Chairwoman, Danielle Vigil-Masten.  
"We applaud the decision to release this water to avert a fish  
disaster, but this lawsuit demonstrates the need for long term  
solutions to the fisheries crisis in the Klamath and Trinity rivers."

The Court rejected demands by San Joaquin Valley corporate  
agribusiness interests to block the releases that were supposed to  
have started August 13.

The Trinity River, the Klamath River's largest tributary, is the only  
out of basin diversion into the Central Valley Project. Westlands  
Water District and the San Luis and Delta-Mendota Water Authority  
filed a lawsuit against a government decision to release water for  
fish on August 7. The Hoopa Valley Tribe and Pacific Coast Federation  
of Fishermen’s Associations intervened in the case on the side of the  
federal government.

After hearing from half a dozen fisheries experts who all agreed that  
the water release program was supported by the science, the Court  
ruled for the water release program to move forward.

"Judge O'Neill seemed to be pressing Tribal and Federal scientists  
for answers to what salmon need to survive in the Klamath River this  
year," said Hoopa Valley Tribal biologist Mike Orcutt. "We did our  
best and hoped and prayed for this decision. The fate of the fish was  
in the judged hands and he made the right decision."

“Commercial fishermen and Indian Tribes explained to the Court how  
another large-scale fish kill would devastate the coastal economy,”  
said Glen Spain of the Pacific Coast Federation of Fishermen's  
Associations (PCFFA). “This decision is wonderful news for a  
California native salmon run and all the coastal communities who  
depend on the salmon for their sustainable livelihoods.”

Attorney Jan Hasselman of Earthjustice, who intervened on behalf of  
PCFFA, said, “The decision to protect salmon also protects the  
Northern California coastal communities. Salmon runs can provide jobs  
forever if managed correctly. The science is clear that additional  
releases are needed to protect this priceless resource.”

Yurok Tribe Stillwater consultant Dr. Josh Strange testified that the  
Ich parasite, which devastated Klamath salmon populations in  
September 2002, was a poor swimmer so the water flows wash away the  
parasite. Yurok scientist Mike Belchik also testified about the  
disruptive effect of water energy on salmon parasites.

"This year is unusual in that extremely low flow conditions in the  
lower Klamath are occurring at the same time fisheries managers  
expect the second-largest run of chinook on record to begin arriving  
within days," noted Spain. "Federal, state and tribal salmon  
biologists have been gravely concerned that this confluence of high  
runs and low flows will lead to another mass fish kill like the one  
that occurred in 2002."

Experts explained to the judge how water conditions in the basin this  
year are almost identical to those in 2002, except with a far larger  
adult run of chinook, the third largest on record, expected to return  
to the system. "The undisputed evidence before the Court was that the  
risk of another fish kill was grave," said Spain.

The 2002 fish kill led to coast-wide closures of commercial,  
recreational and tribal fishing, leading to serious harm to the  
economy, reminded a joint statement from the PCFFA and Earthjustice.  
Congress ultimately appropriated $60 million in disaster assistance  
to help coastal communities, an amount that was widely regarded as a  
fraction of what was needed.

"This decision is great news for the Trinity River, its salmon, its  
people and the rule of law and science," summed up Tom Stokely, Water  
Policy Analyst/Media Contact for the California Water Impact Network  

Dan Nelson, Executive Director of the San Luis & Delta-Mendota Water  
Authority, also claimed victory in response to Judge O'Neill's order  
lifting the temporary restraining order, noting that the order  
reduced the total amount of water slated for release to 20,000 acre  

"Today's decision by Judge O'Neill to lift the temporary restraining  
order which prevented the release of water from Trinity Reservoir  
results in a significant decrease in the harm originally expected to  
occur," said Nelson. "Yesterday, the United States reduced their  
stated need of up to 109,000 acre-feet of water, which they claimed  
just last week was the amount necessary, to now only 20,000 acre- 
feet. Clearly the scientific justification they provided last week  
just couldn't hold up."

"We appreciate Judge O'Neill's understanding of the urgency and  
importance of this matter. We also recognize the burden he placed  
upon himself by setting aside his heavy case load to allow for the  
careful consideration of the question at hand. In his decision, Judge  
O'Neill stated that, 'all parties have prevailed in a significant,  
responsible way,'" Nelson stated.

While this is a big victory, the future of salmon and steelhead on  
the Sacramento, Klamath and Trinity rivers is threatened by Governor  
Jerry Brown's rush to build the peripheral tunnels under the  
California Delta. The twin tunnels would deliver massive amounts of  
northern California water to corporate agribusiness to irrigate  
toxic, drainage-impaired land on the west side of the San Joaquin  
Valley and to oil companies to expandfracking in Kern County and  
coastal areas. The $54.1 billion boondoggle would hasten the  
extinction of Central Valley Chinook salmon, steelhead, Delta and  
longfin smelt, green sturgeon and other fish species.

Read the court decision: http://earthjustice.org/documents/legal- 
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